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Sen. Leahy removes potential threat to due process from Violence Against Women Act

November 15, 2011

Campus activists are cheering a decision by Vermont Democratic Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, to do away with a portion of the Violence Against Women Act (VAWA) reauthorization that would have required college students accused of sex-based infractions be tried under a lowered standard of proof.

“Because of the feedback he has received concerning this proposal, he does not plan to include it in the bill he later will introduce,” explained Senate Judiciary Committee spokeswoman Erica Chabot in a statement.

The portion of the bill in question would have codified into law new regulations imposed on colleges by the Department of Education’s Office for Civil Rights via an April 4 “Dear Colleague” letter from the Department of Education’s assistant secretary for civil rights, Russlynn Ali.

The letter ordered colleges to lower the standard of proof for those accused of sex-based violations to a “preponderance of evidence” rather than a “clear and convincing” standard.

“[I]n order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred),” Ali wrote to colleges in April.

The Foundation for Individual Rights in Education (FIRE) opposed the initial “Dear Colleague” letter and has been fighting to get Leahy to remove mention of it from the current iteration of VAWA, calling on members to direct their senators to not support or co-sponsor the reauthorization of VAWA until that section was removed.

“FIRE thanks Senator Leahy and all of the legislators and members of the public who brought their concerns to the committee for working to remove this provision from the new draft of the Violence Against Women Act,” FIRE President Greg Lukianoff said in a statement. “As I said when we asked FIRE supporters to oppose this provision, reducing protections for students accused of serious misconduct will not increase justice.”

The advocacy group Stop Abusive and Violent Environments (SAVE) has been arguing that the provision violated the accused’s equal protection and due process rights. Upon hearing the news, the group cheered Leahy’s decision.

“It shows that [Leahy] is responsive to well-documented civil rights concerns,” said Philip W. Cook, SAVE spokesman. “We hope that he and other senators will now take the necessary steps to ensure that the many other problems with the proposed legislation are also addressed.”

While FIRE cheered Leahy’s recent action, they remain frustrated that the guidelines laid out in the aforementioned “Dear Colleague” letter are still in effect.

“We hope that the Office for Civil Rights, which after six months still has produced no response to FIRE’s letter pointing out the myriad problems with its new regulations, will realize that stripping students of due process rights is wrong not only in federal law but also in its own mandates,” added FIRE Senior Vice President Robert Shibley.

Leahy continues to work on a reauthorization bill but the final legislation will not include the language dealing with the Department of Education’s guidance and likely will not address the standard of proof issue at all.